Gujarat High Court
Akbar Kadarmiya Sunni vs State Of Gujarat on 20 June, 2025
NEUTRAL CITATION
R/SCR.A/6231/2025 JUDGMENT DATED: 20/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (DEFAULT BAIL) NO. 6231 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE M. R. MENGDEY
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Approved for Reporting Yes No
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AKBAR KADARMIYA SUNNI
Versus
STATE OF GUJARAT
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Appearance:
MR VIRAT G POPAT(3710) for the Applicant(s) No. 1
MR. DHAWAN JAYSWAL, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE M. R. MENGDEY
Date : 20/06/2025
ORAL JUDGMENT
1. The Petitioner has filed the present petition under the
provisions of Article 226 of the constitution of India, read with
section 187 and Section 483 of Bharatiya Nagarik Suraksha
Sanhita with following prayers:
The petitioner, therefore, prays that this Hon'ble Court be
pleased:
"(a) To allow this petition;
(b) To enlarge the petitioner on bail in connection with
being C.R. Annexure-C) being FIR FIR
No.11196010250001 of 2025 registered with DCB Police
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Station, Vadodara and further be pleased to pass all
other consequential and effective orders in that regard;
(c) To quash and set aside the order dated 24.03.2025
(Annexure-A) in connection with FIR being C.R.
No.11196010250001 of 2025 registered with DCB Police
Station, Vadodara and further be pleased to release the
petitioner on default bail in terms of section 187 of the
Bharatiya Nagarik Suraksha Sanhita, 2023 (section 167
of the CrPC) in connection with aforesaid FIR and
further be pleased to pass all other consequential and
effective orders in that regard
(d) Pending admission, hearing and final disposal of the
present petition, to enlarge the petitioner on default bail
in connection with FIR (Annexure-C) being FIR being
C.R. No.11196010250001 of 2025 registered with DCB
Police Station, Vadodara;
(e) To dispense with the filing of affidavit as the
applicant is in custody.
(f) To dispense with filing of Vakalatnama Special Jail at
Palara, Bhuj since Vakalatnama from earlier Central Jail
Vadodara is filed
(g) To pass any other and further orders as may be
deemed fit and proper to this Hon'ble Court."
2. The facts and circumstances gave rise to the filing of the
present petition are such that an FIR being CR. no.
11196010250001 of 2025 came to be registered at the DCB
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Police Station, Vadodra City for offence punishable under the
provision of The Gujarat Control of Terrorism and Organized
Crimes Act, 2015 (For Short GUJCTOC Act) on 01/01/2025.
The Petitioner was arrested in connection with the present
offence on 06/01/2025. On 21/03/2025 the Special Public
Prosecutor submitted an application under Section 20 (2)(B)
of the GUJCTOC Act before the learned Special Court, praying
for extension of time for the investigation agency to conclude
the investigation for further period of 90 days. Upon the said
application being filed, a notice came to be issued to the
present Petitioner and other co-accused asking them to
remain present for hearing of the said application. The
Petitioner and other co-accused refused to accept the notice
issued by the learned Special Court. The learned Special
Court thereafter vide order dated 24/03/2025 allowed the
application submitted by the learned Special Public
Prosecutor and the period for the investigating agency to
conclude the investigation was extended by 90 days. On
09/04/2025 that is after the learned Special Court passed an
order of extension of time for conclusion of investigation, the
Petitioner submitted an application under Section 187 of the
Bharatiya Nagarik Suraksha Sanhita seeking statutory bail.
The said application was dismissed by the learned Special
Court vide order dated 22/04/2025. Being aggrieved by the
same the petitioner has preferred the present petition.
3. Heard learned advocate Mr. Virat G. Popat appearing for
the petitioner. He submitted that the petitioner was arrested
in connection with the offence on 06/01/2025 and therefore,
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the period for the investigating agency to conclude the
investigation was getting over on 06 th April 2025. In the
interregnum, learned Special Public Prosecutor filed an
application before the learned Special Court on 21/03/2025,
seeking to extend the period for conclusion of investigation by
90 days. Upon receipt of the said application, a notice came to
be issued by the learned Special Court to the present
Petitioner as well as the other co-accused. However, the
Petitioner as well as the other co-accused intimated that they
would receive the notice only after discussing the matter with
their advocate. The application submitted by the learned
Special Public Prosecutor was decided by the learned Special
Court and was allowed vide order dated 24/03/2025. He
submitted that accepting for the sake of argument that the
Petitioner and other co-accused had refused to receive the
notice, the provision of Section 167 (2) of the Criminal
Procedure Code, requires the accused to be kept present
before the court at the time of hearing of the application for
extension of time for conclusion of investigation. There is two
fold statutory requirement for deciding the application filed by
the prosecution for extension of time, wherein at first place, a
notice is required to be issued to the accused and the accused
is also required to be kept present before the court at the time
of hearing of such application. This is a mandatory
requirement. Therefore, merely because a notice was issued
to the Petitioner and the other co-accused by the learned
Special Court, which was allegedly refused by the Petitioner
and other co-accused, would not absolve the prosecution of its
liability to keep the accused present before the court. He
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further submitted that learned Special Public Prosecutor had
merely signed the report, which was received by him from the
investigating officer. There was no independent application of
mind by the Special Public Prosecutor to the facts of the case.
He further submitted that no explanation is coming forth from
the record as to why the Petitioner and the other co-accused
were not kept present before the Court, when the order dated
24/03/2025 came to be passed by the learned Special Court.
Therefore, the order passed by the learned Special Court
extending the time limit for the investigating agency to
conclude the investigation, suffers from gross violation of the
mandatory requirements, under the provision of section 187
of the Bharatiya Nagarik Suraksha Sanhita, which entitles the
Petitioner herein to be enlarged on statutory (default) bail.
3.1 Learned advocate Mr Virat G. Popat appearing for the
Petitioner has sought to rely upon the judgment of the
Hon'ble Apex Court in case of : (1) Jigar @ Jimmy
Pravinchandra Adatiya vs State Of Gujarat reported in
2022 Live Law (SC) 794. (2) Hitendra Vishnu Thakur vs
State Of Maharashtra, 1994 (4) SCC 602. (3) Sanjay
Dutt vs State through C.B.I., 1994 (5) SCC 410.
4. Learned APP has opposed the present application
contending that the application came to be filed by the
learned Special Public Prosecutor seeking extension of time
for conclusion of investigation on 21/03/2025. Upon receipt of
the said application, learned Special Court at Vadodara, had
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issued a notice to the Petitioner as well as to the other co-
accused asking them to remain present before the Court
either personally or through their advocates for hearing of the
said application. The Petitioner as well as the other co-
accused had refused to accept the said notice, saying that
they would receive the notice only after discussing the matter
with their respective advocates. The conduct on the part of
the Petitioner and the other co-accused amounts to refusal to
accept the notice issued by the competent Court. The
Petitioner as well as the other co-accused were duly put to
notice by the learned Special Court of the fact of an
application for extension of time having been submitted by the
learned Special Public Prosecutor. However, the Petitioner
and the other co-accused had refused to receive such notice
and resultantly they have chosen not to remain present before
the learned Special Court either personally or through their
advocates for hearing of the said application. Therefore, now
it is not open for the Petitioner and the other co-accused to
contend that the order dated 24/03/2025 passed by the
learned Special Court came to be passed in their absence. He
further submitted that the conduct on the part of the
Petitioner and the other co-accused not receiving the notice
issued by the learned Special Court demonstrates their mind-
set towards the learned Court. He therefore, submitted to
dismiss the application.
5. Heard learned advocates for the parties and perused the
record. From the record, it appears that the Petitioner came
to be arrested in connection with the offence in question on
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06th January, 2025. Therefore, the provision under the
Bharatiya Nagarik Suraksha Sanhita and GUJCTOC Act
required the investigating agency to conclude the
investigation and file the charge-sheet within the period of 90
days from the date of arrest of the Petitioner and the other co-
accused.
6. Section 20 of the GUJCTOC Act, empowers the learned
Special Court to extend the period of conclusion of
investigation by further period of 90 days. An application in
that regard is required to be submitted by learned Public
Prosecutor. The Public Prosecutor is also required to apply his
mind to the report submitted by the investigating officer to
him, and has to submit the report to the concerned court for
its consideration stating the progress in investigation and
thereafter, if the court is convinced as regards requirement
for extension of time, it may extend the time for the period
upto 180 days. Upon such application being submitted by
learned Special Public Prosecutor, in the present case,
learned Special Court had ordered issuance of notice to the
petitioner as well as the other co-accused. Accordingly, a
notice came to be issued to the petitioner as well as the other
co-accused asking them to remain present before the learned
Special Court either personally or through their advocates on
24/03/2025 at 15:00 hours. The said notice was forwarded to
the Jailer of Vadodara Central Jail for being served upon the
petitioner as well as the other co-accused. The notice was
returned by the Jailer of Vadodara Central Jail on 21/03/2025,
with an endorsement that the Petitioner as well as the other
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co-accused had informed that they would receive the notice
after consulting their advocates and had refused to accept the
notice at the relevant point of time. Therefore, learned Special
Court passed an order dated 24/03/2025, allowing the
application filed by the Special Public Prosecutor for
extending of time, and the period for the investigating officer
to conclude the investigation was extended by period of 90
days. It is required to be noted at this stage that an
application came to be submitted by the Petitioner under
Section 187 of the Bharatiya Nagarik Suraksha Sanhita on
09/04/2025 seeking default bail on the ground that the period
for conclusion of investigation was over and the Petitioner
was not kept present before the court nor was he heard
virtually before passing the order dated 24/03/2025. It is
relevant to note at this stage that the order dated 24/03/2025
was not challenged by the petitioner by taking recourse to
appropriate proceedings till 09th April, 2025, though, he was
very much aware of the said order. Therefore, the fact
remains that when the application dated 09/04/2025 came to
be filed by the Petitioner seeking statutory bail, the order
extending the time limit for conclusion of investigation was
already in existence. The issue was before the Hon'ble Apex
Court in case of Qamar Ghani Usmani vs The State Of Gujarat,
(Criminal Appeal No. 1045 of 2023 and 1046 of 2023). In the
said judgment the Hon'ble Apex Court in Paragraph 7 of the
judgment is as under :
"Therefore, in the aforesaid peculiar facts and
circumstances of the case, when two
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extensions granted by the Court which are not
challenged and at the time when the default
bail application was made on 10/05/2022 there
was already an extension and even thereafter,
also there was a second extension which was
in presence of the accused and thereafter,
when the charge-sheet has been filed within
the period of extension, the accused is not
entitled to be release on statutory/default bail
as prayed."
7. Learned advocate appearing for the Petitioner has
sought to rely upon the Judgment of the Hon'ble Apex Court
in the case of Jigar @ Jimmy Pravinchandra Adatiya vs State
Of Gujarat (Supra), wherein the Hon'ble Apex Court has
observed:
"When the Special Court exercises the power of granting
extension under the proviso to sub-section 2 of Section
20 of the 2015 Act, it will necessarily lead to the
extension of the judicial custody beyond the period of 90
days up to 180 days. Therefore, even in the terms of the
requirement of clause (b) of sub-section 2 of Section 167
of Criminal Procedure Code, it is mandatory to procure
the presence of the accused before the Special court
when a prayer of the prosecution for the extension of
time to conclude investigation is considered."
8. In the case before the Hon'ble Apex Court, when the
Special Court passed an order extending the time for
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conclusion of investigation upon the report submitted by the
Public Prosecutor, the accused were not kept present either
physically or through video conference and they would not
found informed about the report having been submitted by the
public prosecutor. The question before the Hon'ble Apex
Court was as regards legal consequences of the failure of the
Special Court under the Act to procure the presence of the
accused at the time of consideration of the report submitted
by the Public Prosecutor. In the present case, as discussed
here-in-above, a notice was issued by the learned Special
Court to the Petitioner as well as the other co-accused upon
receipt of an application dated 21/03/2025 filed by the Public
Prosecutor which was not accepted by them. Therefore, it
cannot be said that the learned Special Court had failed in
procuring the presence of the Petitioner as well as the other
co-accused at the time of deciding the application filed by the
Public Prosecutor for extension of time. On the contrary the
Petitioner as well as the other co-accused had intentionally
not received the notice issued by the learned Special Court
asking them to remain present on 24/03/2025 either
personally or through their advocates. Therefore, it would not
be open for the Petitioner as well as the other co-accused to
claim that there was failure on the part of the learned Special
Court in procuring their presence at the time of deciding the
application for extension of time.
9. The Hon'ble Apex Court in its judgment in case of
Sanjay Dutt vs State through C.B.I., had considered the
judgment in case of Hitendra Vishnu Thakur vs State Of
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Maharashtra, and has observed:
"The requirement of such notice to the accused before
granting the extension for completing the investigation
is not a written notice to the accused giving reasons
therein. Production of the accused at that time in the
Court informing him that the question of extension of the
period for completing the investigation is being
considered, is alone sufficient for the purpose."
10. Thus, the purpose for the accused to be kept present at
the time of hearing of an application for extension of time is
only with a view to keep him informed about such application
having been filed to enable him to put forth his defense
against such an application. At the cost of repetition, it is
required to be noted that the notice was issued to the
Petitioner as well as the other co-accused upon receipt of an
application filed by the Public Prosecutor, which was not
received by the Petitioner as well as the other co-accused. The
Petitioner as well as the other co-accused were very much
aware of the fact that an application for extension of time was
filed by the prosecution and despite the said knowledge
having been derived by them through the notice, they had
chosen not to remain present before the Court. In fact the
approach on the part of the Petitioner as well as the other co-
accused in not receiving the notice, was of non co-operation to
the Court. Learned Special Court cannot be found fault with,
for the Petitioner as well as the other co-accused intentionally
choosing not to remain present before it at the time of
deciding the application for extension of time. The present
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application is therefore devoid of any merit and hence, same
is hereby dismissed.
11. After the order is pronounced, learned Advocate for the
Applicant has prayed for some liberty to be reserved.
11.1 Accordingly, it is needless to say that, it will be open for
learned advocate for the applicant to file an application for
Regular Bail.
(M. R. MENGDEY,J)
Kaushal Rathod / J.N.W
